Kennedy v Commissioner of Police [2001] NSWADT 39 (14 March 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Kennedy -v- Commissioner of Police [2001] NSWADT 39

PARTIES: APPLICANT

Rodney Kennedy

RESPONDENT

Commisioner of Police, New South Wales Police Service

FILE NUMBERS: 003276

HEARING DATES: 21/12/2000

SUBMISSIONS CLOSED: 21/12/2000

DECISION DATE: 14/03/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Administrative Decisions Legislation Amendment Act 1997

Administrative Decisions Tribunal Act 1997

Freedom of Information Act 1989

Police Service Act 1990

CASES CITED: Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11

Rittau -v- Commissioner of Police, New South Wales Police Service and Anor [2000] NSWADT 186

Ekermawi -v- Commissioner of Police, NSW Police Service and The Premier of New South Wales [2001] NSWADT 27

Hawker v The Premier's Department of New South Wales (unreported NSW District court, Urquhardt J, 17 December 1990

Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93

Department of Industrial Relations v Burchill [1991] FCA 616; (1991) 33 FCR 122

Australian Doctors' Fund Ltd v Commonwealth of Australia [1994] FCA 177; (1994) 49 FCR 478

Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16

Hawker v The Premier's Department (unreported NSW District Court, 17 December 1990

Department of Industrial Relations v Burchill [1991] FCA 616; (1991) 33 FCR 122

Australian Doctors' Fund Ltd v Commonwealth of Australia [1994] FCA 177; (1994) 49 FCR 478

Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67

A-G's Department v Cockcroft (1986) 64 ALR 97

Re: O'Grady and: Australian Federal Police (1983) 5 ALN N420

APPLICATION: access to documents - law enforcement & public safety

Freedom of Information Act - access to documents - law enforcement & public safety

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

Mr Spartalas, barrister

ORDERS: 1. The agency's decision to refuse access to the documents in dispute is affirmed.

2. All exempt material should be returned to personally to Mr Tunks, solicitor for the agency, 28 days from the date of this decision.

Reasons for Decision:

Introduction

1 These reasons relate to a decision of the Commissioner of Police, NSW (the agency) not to give the applicant, Mr Kennedy, access to certain documents. Mr Kennedy applied, under the Freedom of Information Act 1989, (FOI Act) for access to the following documents:

(1) All medical records relative to myself

(2) All documents relevant to myself which were delivered to Deniliquin District Court (under subpoena) in the Trial of DPP v T Honeyman and B Quinlan listed for hearing on 6 March 2000. (These documents were delivered by Internal Affairs Personnel to the above mentioned Court.)

(3) All documents held relative to my attending Assessment Centres at Parramatta for promotion to Local Area Commander.

(4) All documents relative to Operation "Burnley" reference Investigation Number 54 conducted by Internal Affairs in 1997 upon myself. Such documents should include but not be limited to the following:

(5) Operation orders, memos, transcripts of telephone intercepts, information for the obtaining of telephone intercept warrants, copy of warrant, name of the authorising officer for the operation, all briefing notes and correspondence relative to Operation "Burnley".

(6) All correspondence relative to my 181D Dismissal Notice issued in January 1999 including the recommendations and reasoning.

2 The agency gave Mr Kennedy access to the documents described in paragraphs 1, 2 and 3 of his application and some of the documents described in paragraph 6 (s 181D documents). Access was denied to all documents identified in paragraphs 4 and 5 (Operation "Burnley" documents). Mr Kennedy requested an internal review of the agency's decision. That review, dated 24 August 2000, affirmed the original decision to refuse access to what were described as Operation "Burnley" documents, "Assessment Centre" documents and some s 181D documents on the ground that they are exempt documents. These documents correspond with items 3, 4, 5 and 6 in the applicant's FOI request. The agency's principal claim in relation to the vast majority of documents was that they were restricted documents pursuant to Clause 4(1) of Schedule 1 to the FOI Act because they were documents affecting law enforcement and public safety.

3 On 15 August 2000, the applicant filed an application for review of the agency's decision with the Tribunal. He withdrew his application in relation to any Assessment Centre Documents. Consequently, the documents in dispute are those relating to Operation "Burnley" Documents, the material on the s 181D file material which also relates to Operation "Burnley" and four documents on the s 181D file over which legal professional privilege was claimed. This material corresponds with items 4, 5 and 6 of Mr Kennedy's FOI application.

Agency's handling of Mr Kennedy's application

4 Mr Kennedy complained to the agency and the Tribunal about the manner in which his FOI application had been dealt with. The history of his application is set out in a letter dated 25 July 2000 to the agency. Initially Mr Kennedy was not given a written response to his application, but was given some documents. The Police Service do not have an accurate record of what he was given. Mr Kennedy was invited to go to Sydney to look through documents with Inspector Langbourne on 14 June 2000. Despite assurances that all the documents (apart from Assessment Centre documents) would be available for identification at that meeting, none of the documents described in items 4 and 5 and 6 of Mr Kennedy's application were produced.

5 These allegations, which were not disputed by the Police Service, reveal that Mr Kennedy was misled about which documents would be made available to him at the meeting on 14 June 2000. If they have not already done so, the agency should make sure that FOI applications are responded to in accordance with the legislation. There is no evidence in this case that an officer failed to exercise in good faith a function imposed by the Act. If there was evidence of such conduct, the Tribunal would have power under s 58 of the FOI Act to bring the matter to the attention of the responsible Minister.

Background to the application

6 Mr Kennedy was a police officer until 2 December 1999 when he was medically discharged. He was arrested in October 1997 and charged with two counts of "obtain benefit by deception". These charges were based on investigations conducted under the name Operation "Burnley". The Local Court dismissed the charges on 12 May 1998. On 14 October 1997 Mr Kennedy was suspended from duty with pay. In 1998 Mr Kennedy was issued with a s 181D Notice under the Police Service Act 1990. Section 181D(1) states that:

The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.

7 Mr Kennedy appealed against his dismissal to the Industrial Relations Commission, where it was agreed between the parties that Mr Kennedy would be medically discharged from the Police Service. His services were terminated on 25 January 1999. Mr Kennedy is currently pursuing a Workers Compensation Claim and says that he requires the disputed documents for use in those proceedings and for his own edification.

Conduct of the hearing

8 As a result of Mr Kennedy's application, the agency confidentially produced two folders of documents to the Tribunal. One folder contained the disputed s 181D documents and the other contained the disputed Operation "Burnley" Documents. Mr Spartalas, counsel for the agency, told the Tribunal that he realised just a few days ago that the last page of the Operation "Burnley" folder contained information which indicated that there were more documents held by the agency which came within the description of documents in Mr Kennedy's FOI application. Consequently a further seven boxes of documents relating to Operation "Burnley" were produced confidentially to the Tribunal on the day of the hearing. A confidential schedule of documents itemising and describing each of the documents in the boxes was provided to the Tribunal.

9 Following a brief opening statement by each party, Mr Spartalas requested that the Tribunal hear evidence and submissions in the absence of the public and Mr Kennedy. That requested was granted. During this session, confidential statements were tendered (Exhibit 1 and 2) and confidential oral evidence was given by two witnesses.

Scheme of the FOI Act

10 One of the objects of the FOI Act, as set out in s 5(1)(a), is to "extend, as far as possible, the rights of the public to obtain access to information held by the Government." This object is achieved, in part, "by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government." (See s 5(2)(b)). The burden of proof lies on the agency or Minister to establish that the determination is justified. (See s 61.)

11 Section 25(1) and (3) of the FOI Act, contain provisions allowing an agency to refuse access to an exempt document. An agency must refuse access to a restricted document that is the subject of a Ministerial certificate.

(1) An agency may refuse access to a document:

(a) if it is an exempt document,

(3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate.

12 Restricted documents are defined in s 6 of the FOI Act to mean "a document referred to in any one or more of the provisions of Part 1 of Schedule 1." Part 1 of Schedule 1 contains provisions relating to cabinet documents (Clause 1), executive council documents (Clause 2) and document affecting law enforcement and public safety (Clause 4). Clause 3 has been repealed.

13 Sub-section (4) of s 25 requires an agency to provide access to a restricted document if it is practicable to give access to the document with the exempt material deleted. That sub-section states that:

(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):

(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and

(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

14 Section 59 of the FOI Act allows the Minister to sign a certificate stating that a specified document is a restricted document. Such a certificate is taken to be conclusive evidence that the document is a restricted.

15 Section 53(1) allows a person who is aggrieved by a determination of an agency, to apply to the Tribunal for a review of the decision. In the case of an application to the Tribunal for access to "restricted" documents in relation to which a Ministerial certificate has been issued, the review applicant may apply to the Supreme Court for an order that there are no reasonable grounds for the claim. Section 58A(1) provides that:

The Supreme Court may, on the application of the review applicant in proceedings before the Tribunal under Division 2, consider the grounds on which it is claimed that a document that is the subject of a Ministerial certificate is a restricted document.

16 Section 58B(2) provides that:

If, after considering any document produced before it, the Supreme Court is still not satisfied that there are reasonable grounds for the claim, the Supreme Court is to make an order to that effect and remit the matter to the Tribunal.

17 The Administrative Decisions Tribunal Act 1997 (ADT Act) is also relevant when determining the Tribunal's powers in relation to applications for the review of decisions made under the FOI Act. Section 63 of the ADT Act sets out the Tribunal's powers when reviewing a reviewable decision.

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

History of Tribunal's approach to decisions involving "restricted" documents

18 Background. The effect of the current provisions of the FOI Act and the ADT Act in relation to decisions involving a claim that a document is a restricted documents has been the subject of several submissions on behalf of the Premier and various agencies, both in these proceedings and in previous proceedings. (See: Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11; Rittau -v- Commissioner of Police, New South Wales Police Service and Anor [2000] NSWADT 186; Ekermawi -v- Commissioner of Police, NSW Police Service and The Premier of New South Wales [2001] NSWADT 27)).

19 In these proceedings, a Ministerial certificate has not been issued in relation to any of the documents. The agency is claiming, among other things, that the documents in dispute are "restricted documents" under Cl 4 of Part 1 to Schedule 1. The only provision of the FOI Act which relates to "restricted documents" where no Ministerial certificate has been issued, is s 57. That section states that:

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.

20 Before discussing the meaning of this provision, the legislative history of provisions relating to external review of restricted documents will be examined to provide the context for that discussion.

21 Previous provisions relating to external review of restricted documents. When the FOI Act first came into operation in 1989, external review from a decision of an agency was to the District Court. Section 57 in its original form allowed the District Court to consider the grounds on which it was claimed that a document was restricted, whether or not it was the subject of a ministerial certificate. The original s 57 stated that:

The District Court may, on the application of the appellant, consider the grounds on which it is claimed that a document is a restricted document, notwithstanding that the document is the subject of a Ministerial Certificate.

22 Subsections (1) to (6) of s 57 were substantially the same as the current provisions except that the original s 57(4) obliged the District Court to make an order that there were no reasonable grounds for the claim if it was so satisfied. In the same circumstances, the current provisions oblige the Tribunal "to reject the claim when determining the review application."

23 The second part of the original s 57 dealt with the powers of the Minister administering the Act to confirm the certificate.

24 Hawker v The Premier's Department of New South Wales (unreported NSW District court, Urquhardt J, 17 December 1990) dealt with s 57 as it was originally enacted. The documents in that case were the subject of a Ministerial Certificate. Urquhardt J (agreeing with judicial interpretation of Commonwealth FOI legislation on this point) decided that the Court must ask itself not whether it considers a document exempt but whether reasonable grounds exist for such a claim. Urquhardt J was satisfied on the evidence that there were reasonable grounds for the claim that the document was prepared for submission to Cabinet. The appeal was dismissed without any further reference to the merits of the exemption claimed.

25 On 1 July 1992, amendments to s 57 came into effect. The section was amended so that it only applied to restricted documents which were not subject to a Ministerial Certificate. Section 58A, B and C were added to give the Supreme Court power to consider whether there are reasonable grounds for the claim that a document is a restricted document. If it was not so satisfied, it was obliged to remit the matter to the District Court. Section 57(4) was also amended so that instead of obliging the District Court to "make an order to that effect" when it was not satisfied that there were "reasonable grounds for the claim," the Court was directed to "reject the claim when determining the appeal."

26 Prior to 6 October 1998, when amendments in the Administrative Decisions Legislative Amendment Act 1997 came into effect, the FOI Act limited the external review powers in relation to exempt documents. Section 55(5) stated that:

This section does not operate so as to enable the District Court to determine that access to an exempt document is to be given.

27 Despite submissions to the contrary made by parties in other proceedings, in my view there is no longer an equivalent provision in relation to the Tribunal's powers, either in the FOI Act or the ADT Act.

28 Premier's view on the meaning of s 57. In summary, the Crown Solicitor's Office, representing the Premier, submitted that the effect of s 57 of the FOI Act is that once the Tribunal is satisfied that there are reasonable grounds for the agency's claim that a document is a restricted document, the Tribunal must affirm the agency's decision. If that is the meaning of s 57, then it is a "contrary provision" within the meaning of s 40(1) of the ADT Act. Section 40(1) states that:

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.

(4) In this section:

relevant enactment means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal.

29 Tribunal's approach to date. The Tribunal discussed these submissions in Rittau and concluded firstly that s 57 did not have the meaning contended by the Premier and secondly, that even if it did, it was not a "contrary provision" within the meaning of that term in s 40 of the ADT Act. The Tribunal made the following comments at paragraphs 38 of the decision in Rittau:

38 When section 57(4) of the FOI Act speaks of "the claim" it does not refer to the Tribunal's jurisdiction to review the reviewable decision itself. It merely relates to the claim referred to in section 57(1), and picks up that language. All that section 57(4) relates to is an examination by the Tribunal of a claim by the agency that the document is a restricted document (not subject to a Ministerial Certificate). It does not speak of or relate to the Tribunal's jurisdiction or powers to "review" the reviewable decision and deal with the disputed document in accordance with sections 24 and 25 of the FOI Act, once it is found that the document is a restricted and exempt document.

30 In relation to the submission that s 57 was a "contrary provision", the Tribunal went on at paragraphs 46 of Rittau, to say that:

46 In any event, even if I am wrong on the proper construction of section 57(4) of the FOI Act, I cannot accept the respondents' submission that because of section 40(1) of the ADT Act, the provisions of the ADT Act operate "subject to" the implication or inference contained in section 57 of the FOI Act that was contended for by the respondents. NSW Parliament has already expressly considered and dealt with the scope of the relationship between the ADT Act and the FOI Act in relevant respects in the FOI Act itself (Section 53(4) (internal review) & (5) (application of Part 5, Division 2 of the FOI Act).

31 The Premier also submitted in Rittau that by reason of s 55 of the FOI Act and s 124 of the ADT Act, the Tribunal has no override discretion in relation to exempt (including restricted) documents. In Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 the Tribunal found that the Tribunal had a duty to consider whether the agency was justified in refusing access to a document even where the document is an exempt document falling within cl 10 of Sch 1. The Tribunal in Mangoplah dealt with and dismissed the agency's arguments in respect of s 55 of the FOI Act and s 124.

32 One of the questions to be determined in Rittau was whether the override discretion applied to exempt documents which were "restricted". In Rittau the Tribunal considered that Mangoplah "correctly identified the existence of and nature of the Tribunal's override discretion." (see paragraph 66). The Premier responded to this finding in submissions relating to the present proceedings. (Further submissions filed for the Premier of NSW dated 21 December 2000.) The Crown Solicitor's Office, on behalf of the Premier, submitted that the decision in Mangoplah can be distinguished from the current case because it deals with exempt documents in general and not with restricted documents in particular. The Premier submitted that:

While restricted documents are within Schedule 1 of the FOI Act which deals with exempt documents, in Mangoplah the Tribunal distinguished between them (at [76]) and seems not to have turned its mind to the case of restricted documents. This was referred to by Judicial Member Smith in Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 where he said: (at [21]:

21 In Mangoplah I considered that the Tribunal on review of a decision refusing access to a document on the ground that it is an exempt document ordinarily also has the function of reviewing the merits of exercising the override discretion. However, Mangoplah did not concern a claim relating to Part 1 of the Schedule, i.e. that a document was a "restricted document". I left for another day whether the Tribunal's usual review function was limited in relation to such claims by reason of the special provision made in s 57 of the FOI Act.

33 The Premier re-iterated his submission that once the Tribunal is satisfied that there are reasonable grounds for claiming that a document is a restricted document, the Tribunal's review function is complete.

Tribunal's reasoning and conclusions on meaning of s 57

34 Summary of conclusions. The Tribunal and the parties have so far impliedly accepted the proposition that whenever an agency makes a claim that a document is a restricted document, s 57 is invoked and the Premier becomes a party to the proceedings. It would not be fair for me to come to a contrary view in this case without hearing from the parties on this issue, however my provisional view is that s 57 can only be invoked by the review applicant. The Premier is a party to such proceedings and must be given the opportunity to appear and be heard before the Tribunal rejects the claim. If the Tribunal is not satisfied that there are reasonable grounds for the claim it must reject the claim when determining the review application. If a claim in proceedings under s 57 is rejected, the Tribunal would go on to set aside any part of the decision that relies exclusively on that claim, pursuant to s 63(3)(c) or (d), without the need for any further inquiry.

35 Neither s 57 of the FOI Act, nor any other provision of the FOI or ADT Acts, gives the Tribunal power to affirm a decision where there are reasonable grounds for a claim that a document is a restricted document. The Tribunal must determine whether the decision not to give access to those documents is the correct and preferable decision on the basis of all the relevant facts and law. In other words, a full merits review of the decision is required. (See s 63 ADT Act.) In my provisional view, the Premier is not necessarily a party to such proceedings. If the Tribunal finds that the document does fall within the provisions of Cl 1, 2 or 4 of Schedule 1, the Tribunal must consider whether to exercise its override discretion. The reasoning on which these conclusions are based is set out below.

36 Application must be made by review applicant. In previous decisions the Tribunal has assumed that s 57 is invoked in respect of every application where a claim is made by the agency that the document is a restricted document. My provisional view is that section 57 is not invoked unless a separate application is made by the review applicant. Section 57 commences with the words "The Tribunal may, on the application of the review applicant, consider the grounds . . ." By lodging an application with the Tribunal, the review applicant has requested a review of the whole of the administrator's decision. Section 57 allows a review applicant to file a separate application on the threshold issue of whether there are reasonable grounds for any claim that a document is restricted. The decision of the agency not to give access to a document or documents may be justified by several exemptions and may involve applications for amendment as well as access. Where the decision, or part of the decision, is based on a claim that a document is restricted, an applicant can invoke s 57. Similarly, in relation to documents the subject of a Ministerial Certificate, s 58A(1) of the FOI provides that: "The Supreme Court may, on the application of the review applicant in proceedings before the Tribunal, consider the grounds . . ." A review applicant must first lodge an application in the Tribunal, then make a separate application to the Supreme Court for a ruling on the question of the reasonableness of the Certificate.

37 Consequences where Tribunal is not satisfied. Section 57 is clear about the Tribunal's powers if it is not satisfied that there are reasonable grounds for a claim that a document is a restricted document. The claim is to be rejected "when determining the review application." (See s 57(4).) The implication of this provision is that each review application must ultimately be determined in accordance with s 63 of the ADT Act. The Tribunal can set aside the decision (as long as the agency's decision is based entirely on a claim that documents are restricted) once it is not satisfied that there are reasonable grounds for the agency's claim.

38 Consequences where Tribunal is satisfied. Section 57 is silent about what the Tribunal should do if it is satisfied that there are reasonable grounds for a claim that a document is a restricted document. On the basis of the submissions outlined above, the Premier's view is that the Tribunal must affirm the decision without reference to the overall merits of the decision. A similar approach was taken by Urquhardt J in Hawker v The Premier's Department (unreported NSW District Court, 178 December 1990) in relation to the provision in a slightly different form. The Tribunal's view as expressed in Rittau is that the Tribunal must go on to consider the merits of the decision that the documents are restricted as well as the appropriateness of exercising the "override" discretion. I agree with the reasoning and conclusions on this issue expressed in Rittau and add the following comments.

39 Sections 33 and s 34 of the Interpretation Act 1987 require a court or tribunal, when interpreting legislation, to take into account the purpose of the legislation even if the meaning of the term is clear . In my view the meaning of s 57 is clear, but the Tribunal should consider the purpose of the legislation to ensure that its interpretation is consistent with that purpose. (Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16 at 30-31.)

40 Taking into account the scheme of the FOI Act (see paragraphs 10 to 17 above) it is apparent that one fundamental purpose of the FOI Act is to enable members of the public to have access to documents subject only to such restrictions as are reasonably necessary for the proper administration of the Government. In my view s 57 is intended to implement this purpose by discouraging agencies from relying on unreasonable grounds for claiming that a document is restricted.

41 This interpretation is consistent with the fact that section 57 is silent in relation to the orders the Tribunal should make if it is satisfied that reasonable grounds exist for the claim. It also supports my provisional view that s 57 can only be invoked by the review applicant, because he or she is the only one who stands to gain from a ruling under the section. The Tribunal can set aside the decision, without having to determine its merits in full. The review applicant receives the benefit of a favourable decision without the need to participate in a full inquiry into the matter.

42 In its Further Submissions filed for the Premier dated 21 December 2000 (responding to the decision in Rittau in the context of the present case) the Crown Solicitor submitted that the Tribunal's interpretation of s 57 in Rittau has the unintended result that s 57 has "no or little role to play." I do not agree with that submission. Whether or not my interpretation of s 57 is accepted in full, that section undoubtedly plays the important role of enabling a review applicant to have a decision based on unreasonable grounds, set aside quickly and cheaply, without the need for a full hearing on the merits.

43 The Tribunal is not bound by the decision in Hawker v The Premier's Department (unreported NSW District Court, 178 December 1990). Apart from the fact that that decision considered slightly different provisions, the Court did not turn its mind to the issues in relation to the interpretation of s 57 which were raised in these proceedings.

44 Premier's role in relation to restricted documents. The reasoning and conclusions set out above support the view that, in accordance with s 57(6), the Minister administering the Act (currently the Premier) is a party to proceedings under s 57. My provisional view is that that person is not necessarily a party to proceedings once the questions raised by s 57 have been determined. The purpose of making the Premier a party is to ensure that he or she has an opportunity to respond to any application on the threshold issues identified above.

45 Override discretion in relation to restricted documents. In Mangoplah Pty Ltd v Great Southern Energy [1999] NSWADT 93, the Tribunal held that the Tribunal had the power, pursuant to its power in s 63 of the ADT Act, to review the decision of an agency to refuse to grant access to an exempt document, even if the Tribunal was also of the view that the document fell within the exemption relating to legal professional privilege in Schedule 1. This power has subsequently been referred to as an "override discretion."

46 My view is that because s 57 is not a "contrary provision" in terms of s 40 of the ADT Act, the provisions of s 63 of the ADT Act continue to apply to Tribunal determinations in relation to restricted documents. In particular, s 63(2) allows the Tribunal to exercise "all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision." As pointed out by the Tribunal in Rittau (at [28]) this provision enables the Tribunal to exercise the administrator's discretion under s 25(1)(a) to refuse access to an exempt document. It also enables the Tribunal to exercise the administrator's obligation in certain circumstances, to give access to a copy of the document from which the exempt matter has been deleted.

47 Under s 25 of the FOI Act the administrator has a discretion to release exempt documents (including restricted documents) and, pursuant to s 63(2), so does the Tribunal. There is nothing in s 57, or elsewhere in the FOI Act or the ADT Act, that distinguishes restricted documents from any other kind of exempt documents in relation to the existence of the override discretion.

Application of these principles to the present case

48 Respondent's submissions. Mr Spartalas' submission was that all the documents in dispute (apart from 4 documents which were allegedly exempt because of legal professional privilege) are exempt documents because they come within the provisions of Cl 4(1)(a) of Schedule 1 to the FOI Act. That provision states that:

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

(a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case

49 Other exemptions relied on in the alternative are those set out in Clause 4(1)(b), (c) and (e).

Applicant's submissions

50 Mr Kennedy's submission was that he should be entitled to look at all the Operation "Burnley" documents. He disputed the agency's reliance on a `blanket' exemption to cover all the material in the boxes. He maintained that identifying information of witnesses or informants could be deleted from the documents and he could be given access to the remainder of the document. He submitted that Operation "Burnley" led to criminal charges being laid against him and he should be permitted to see the documents which formed the basis of those charges.

51 In relation to the agency's submission that information gathering techniques may be disclosed if the documents were released, Mr Kennedy stated that these techniques would be no secret to him. Even if these techniques were disclosed to whole world, no harm would be done because people already know about investigation techniques and surveillance tactics through books and films. He conceded that the agency should not have to disclose an investigation technique which was brand new and that no-one else knew about, but apart from that, there was nothing secret about the manner in which the police service conducted these kinds of investigation.

Tribunal's reasoning and conclusions in relation to the present case

52 Mr Kennedy has not made an application under s 57, therefore my provisional view is that the Tribunal does not need to address the threshold question of whether or not it is satisfied that reasonable grounds exist for the claim that the documents are restricted. If I am wrong about that, then I have to consider whether I am satisfied on the basis of all the evidence, that reasonable grounds do exist for the claim.

53 I agree with the Tribunal's analysis of this issue in [2000] NSWADT 11 at [30] that:

It is well established under the Commonwealth FOI Act that being satisfied as to "reasonable grounds" for a claimed exemption may be easier than being satisfied as to the applicability of the exemption as a matter of fact, and that it does not involve taking account of public interest considerations not raised by the language of the exemption (see Department of Industrial Relations v Burchill [1991] FCA 616; (1991) 33 FCR 122 and Australian Doctors' Fund Ltd v Commonwealth of Australia [1994] FCA 177; (1994) 49 FCR 478). I consider that these authorities should be applied to the NSW FOI Act when deciding whether the Tribunal is "not satisfied that there are reasonable grounds for the claim".

54 I am satisfied, based on the reasoning set out below, that the documents which are claimed to be exempt under Clause 4(1)(a) of Schedule 1 fall within that exemption. Consequently I am satisfied that reasonable grounds exist for that claim.

55 Operation "Burnley" Documents. The nature of the Operation "Burnley" documents is set out in the internal review decision and, in more detail, in the confidential affidavits (Exhibits 1 and 2) and oral evidence of the deponents of those affidavits. On the basis of this evidence (and having inspected the material) I find that the folder of material and the seven boxes produced to the Tribunal contain inquiries, investigation and interviews in relation to the investigation of serious corruption allegations against Mr Kennedy when he was a Senior Sergeant of police. In particular, they identify internal witnesses and informants, contain highly confidential intelligence material in relation to the investigation of a criminal offence, and divulge intelligence gathering, surveillance and anti-corruption methodology within the Police Service. Annexures 1 to 28 also reveal top secret police methodology in respect of covert testing of the integrity of police officers. They also contain other material which I am not at liberty to disclose.

56 Section 181D documents. The agency produced to the Tribunal a folder containing documents relating to s 181D application. A schedule of the documents in the folder was annexed to an affidavit from Alan Maurice Champion (Exhibit 3). The annexure to the affidavit sets out the documents that have been provided to Mr Kennedy and the exemptions initially relied on in relation to the other documents. Mr Spartalas told the Tribunal to disregard the last column in relation to the exemptions claimed, apart from those which rely on Clause 10, legal professional privilege and Cl 4 in relation to material that relates to Operation Burnley .

57 Legal professional privilege. The agency claimed that the following four document were exempt on the basis of legal professional privilege:

Advice of G Willis, General Counsel,

Report of AM Champion;

Request by AM Champion for legal advice; and

Advice of G Willis, General Counsel.

58 Clause 10 of Schedule 1 to the FOI Act states that:

A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

59 A person is entitled to preserve the confidentiality of statements and other materials which have been made or brought into existence for the dominant purpose of seeking or being furnished with legal advice by a practising lawyer, or for the dominant purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings. (Esso Australia Resources Ltd v The Commissioner of Taxation [1999] HCA 67

60 The privilege attaches to communications, not documents. (Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 at [36]; per Gleeson CJ, Gaudron and Gummow JJ: "privilege, where it applies, attaches to communications and not to documents". Kirby J said, at [89] that: "in practical terms . . . claims for the privilege usually concern documents. However, the privilege actually attaches to communications".

61 Having perused the documents in dispute, I consider that they were brought into existence and communicated either to the agency (as the client) from Corporate Counsel (the barrister) or from Corporate Counsel to the client in circumstances where there was an implied confidentiality to the communication. This implication arises from the relationship of solicitor or barrister and client. I am satisfied that the creation of each of the documents and the communication of their contents came about with the dominant purpose of Legal Counsel providing legal advice to the agency. Consequently they are exempt documents.

62 The remainder of the documents in the s 181D folder over which an exemption was claimed are documents labelled F, G, H, I, J, K, L, L1, M, N, O, P, Q, R, S, T, U and V. Section 55(a) (or s57(2)) of the FOI Act prevents me from further disclosing the nature of the Operation "Burnley" or the s 181D documents because to do so would disclose exempt matter. Consequently my reasoning cannot be specific. On the basis of all the evidence and my perusal of the documents I am satisfied that the documents fall within the exemption set out in Clause 4(1)(a) because they contain matter the disclosure of which could reasonably be expected to prejudice the investigation of any contravention or possible contravention of the law both generally and in a particular case.

63 The evidence demonstrates that there is a reasonable, as opposed to an "irrational, absurd or ridiculous" expectation that disclosure of the material could prejudice the investigation of alleged contraventions of the law, both generally and specifically. (See A-G's Department v Cockcroft (1986) 64 ALR 97). The documents were created for the purpose of an investigation and/or during the course of an investigation. (See Re: O'Grady and: Australian Federal Police (1983) 5 ALN N420). I cannot reveal the current status of the investigation or the precise nature of the prejudice in this case because by doing so I would have to disclose exempt material. These matters are set out in the respondent's confidential submissions. Those submissions are based on the confidential and other evidence which I accept.

64 Mr Kennedy told the Tribunal that he was content to have access to documents with the names of informants or internal witnesses deleted. However, the names of such people is not the only exempt material in these documents. No doubt it would be possible to provide Mr Kennedy with a sentence or passage from many of the documents which itself did not disclose exempt material if quoted out of context. However, such material would be totally meaningless to Mr Kennedy and it does not appear to the Tribunal that in those circumstances he would wish to be given access to such material.

65 Override discretion. The nature of the override discretion in relation to exempt material generally was discussed by the Tribunal in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 at [90] and [91]:

90 In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)).

91 Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption. I would not see the question as necessarily suggesting that such a release would be rare, unusual or exceptional. In some areas of government, there may be many documents which fall within an exemption but, for example, whose public interest in release is overwhelming, or whose potential for relevant damage is so obviously remote as to leave disclosure totally innocuous.

66 In this case, there is nothing about the information itself or the surrounding circumstances which persuades me that the exemptions relied on should not be claimed. On the contrary, this case is a classic example of a situation where withholding the document is "reasonably necessary for the proper administration of the Government."

Orders

67 The agency's decision to refuse access to the documents in dispute is affirmed.

68 All exempt material should be returned personally to Mr Tunks, solicitor for the agency, 28 days from the date of this decision.